Avalos v. Baca

• Decision Date: 24 February 2010
• Docket Number: No. 07-56511.,07-56511.
• Citation: 596 F.3d 583
• Parties: J. AVALOS, individually and as representative of the class defined, Plaintiff-Appellant, v. Leroy BACA; Larry Waldie; Shaun Mathers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

596 F.3d 583

J. AVALOS, individually and as representative of the class defined, Plaintiff-Appellant, v. Leroy BACA; Larry Waldie; Shaun Mathers, Defendants-Appellees.

No. 07-56511.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 7, 2009.

Filed February 24, 2010.

Marion R. Yagman (argued) and Joseph Reichmann, Yagman & Yagman & Reichman, Venice Beach, CA, for the plaintiff-appellant.

David D. Lawrence, Michael D. Allen, and Justin W. Clark (argued), Lawrence, Beach, Allen & Choi P.C., Glendale, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, Dean D. Pregerson, District Judge, Presiding. D.C. No. CV-05-07602-DDP.

Before: KIM McLANE WARDLAW and CONSUELO M. CALLAHAN, Circuit Judges, and RALPH R. BEISTLINE,^* Chief District Judge.

CALLAHAN, Circuit Judge:

J. Avalos was over-detained by the Los Angeles Sheriff's Department ("LASD"). He filed this action against officers of the LASD in their official and individual capacities.¹ He asserts claims pursuant to 42 U.S.C. § 1983 for alleged violations of his rights under the Fourth and Fourteenth Amendment based on his over-detention and for defendants' efforts to procure an involuntary waiver of his civil rights claim based on his over-detention. Avalos also alleges claims of conspiracy and violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(a)-(c) ("RICO"). The district court granted summary judgment in favor of defendants. We conclude that (1) plaintiff has failed to show an unconstitutional custom, policy or practice of over-detention, (2) there is no actionable claim under § 1983 for procuring a coercive or involuntary waiver of a civil rights claim, (3) the district court properly granted summary judgment for defendants on plaintiff's conspiracy claims, and (4) plaintiff has failed to present sufficient evidence of a RICO violation or any harm to his business or property from the alleged act of racketeering. Accordingly, the district court's grant of summary judgment in favor of defendants is affirmed.

I

On June 22, 2004, Avalos was arrested on an Orange County warrant for domestic abuse and transported to the LASD's jail. LASD had the responsibility to notify the Orange County Sheriff's Department of Avalos's arrest and detention. See Cal.Penal Code § 821. LASD failed to notify the Orange County Sheriff's Department that Avalos was available to be picked up. On September 4, 2004—over two months later —LASD realized that Avalos had been over-detained and should be released.

On that day, Avalos was allowed to change into his personal clothes and was brought into an empty room. After he entered the room, Deputy Sheriff Wilson came in wearing street clothing and a sheriff's badge, and sat down across a desk from Avalos. According to Avalos, Wilson took out some papers. Avalos does not speak English, and claims that when he told Wilson he did not understand what was in the papers, Wilson only showed him where to sign. Avalos signed the papers, but asserts that he did not understand that the papers were an offer to settle his claim for over-detention for $500.

According to the defendants, when Wilson realized that Avalos did not speak English, he enlisted Deputy Yvonne Zarate to translate. Deputy Zarate stated that she spoke to Avalos, learned that he earned $500 a week in his janitorial job, and discussed the waiver of his claim for over-detention in exchange for $500. Avalos was released later on September 4, 2004, and on September 9, 2004, two LASD officers, in an unmarked car and wearing street clothes, went to visit Avalos at his home. Avalos alleges that they telephoned his home, spoke to his 13-year-old daughter, and told her that Avalos should come outside. Avalos went outside alone. He states that neither of the officers, Wilson and Deputy Lam, spoke Spanish, but they told him to sign a "Release and Settlement Agreement" and gave him a check for $500. Avalos alleges that the officers did not explain the documents to him and he did not understand what he was signing. Avalos signed the documents, accepted the check, and subsequently cashed the check.

Avalos's First Amended Complaint ("FAC") was filed on April 3, 2006, at a time when several other related "over-detention" cases were pending before the district court judge. See Mortimer v. Baca, 478 F.Supp.2d 1171 (C.D.Cal.2007), aff'd Mortimer v. Baca, 594 F.3d 714 (9th Cir.2010) ("Mortimer II"). The FAC alleges four claims for relief. In his first claim, Avalos alleges that defendants violated his Fourth and Fourteenth Amendment rights by causing him to be over-detained and by causing him to involuntarily waive his civil rights claim against defendants. Avalos's second claim alleges that defendants engaged in a conspiracy to cause Avalos's over-detention and his involuntary waiver of his over-detention claim. In claims three and four, Avalos alleges that defendants conspired to and did engage in a pattern of racketeering activity in violation of RICO. Avalos also sought to represent a class of more than a hundred individuals sharing the following characteristics: (1) they were over-detained by the LASD; (2) their over-detentions were recognized by LASD officials; and (3) they were "fraudulently, oppressively, extortionately, or with threats [] duped into compromising their monetary claims for sums far less than those claims are worth."²

In September 2006, Avalos moved for partial summary adjudication. On October 16, 2006, the district court granted plaintiff's motion and determined that he had been over-detained and that the defendants were potentially liable. In March 2007, the defendants moved for summary judgment. On August 24, 2007, the district court granted defendants' motion for summary judgment in its entirety. Avalos v. Baca, 517 F.Supp.2d 1156 (C.D.Cal. 2007). Avalos filed a timely notice of appeal from that order.

II

We review the district court's grant of summary judgment de novo and "must determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir.2001). The moving party has "the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material lodged must be viewed in the light most favorable to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

III

Through this lens, we first consider plaintiff's challenges to the district court's grant of summary judgment on his overdetention claim and on his involuntary waiver claim. We then explain that the failure of plaintiff's substantive claims defeats his claims of conspiracy. Finally, we address plaintiff's challenges to the district court's grant of summary judgment on his RICO claims.

A. The district court properly granted summary judgment for defendants on plaintiff's claims for over-detention.

There is no question that Avalos was over-detained. However, in order to recover from the defendants under 42 U.S.C. § 1983, Avalos must show either that they personally participated in his over-detention or that it was the result of a pattern or custom on their part. Although Avalos sued the defendants in both their official and individual capacities, and the district court granted defendants summary judgment in both capacities, we need only address their official capacity liability.³

Pursuant to Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a public entity defendant sued in his official capacity cannot be held liable under a theory of respondeat superior; rather, a defendant must act as a lawmaker or one "whose edicts may fairly be said to represent official policy." Id. at 693, 98 S.Ct. 2018. The district court explained plaintiff's resulting burden as follows:

There are three ways to meet the policy, practice, or custom requirement for municipal liability under § 1983:(1) the plaintiff may prove that a public entity employee committed the alleged constitutional violation pursuant to a formal policy or a longstanding practice or custom, which constitutes the standard operating procedure of the local government entity; (2) the plaintiff may establish that the individual who committed the constitutional tort was an official with "final policy-making authority" and that the challenged action itself thus constituted an act of official government policy; or (3) the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action. . . . An unconstitutional policy need not be formal or written to create municipal liability under § 1983; however, it must be so permanent and well settled as to constitute a custom or usage with the force of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 26 L.Ed.2d 142, . . . (1970). Furthermore, "[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policy maker." Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791, . . . (1985).

Avalos, 517 F.Supp.2d at 1162.

Defendants, in moving for summary judgment, asserted that Avalos had failed to show that they had a policy, practice or custom of over-detaining inmates. They argued that the district court's grant of summary judgment in Mortimer, 478 F.Supp.2d. 1171, foreclosed plaintiff's over-detention claim because it held that LASD did not maintain a policy, practice or custom of over-detaining inmates. Avalos, 517 F.Supp.2d at 1163.

The district...